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Law students enrolled in various law schools learn little about the fundamentals of legal jurisprudence as being an elective course. Not only that, professors spend less time on this subject matter and more on the exigencies of law. Among these students become Judges and must decide on cases that range from a simple case to a highly complex legal matter. The fundamentals of jurisprudence being taught is different in various parts of the world. For instance, the teachings of law within the American legal education is different from the common law principles taught in European and Asian countries.

Following predefined learning processes, Attorneys adhere to the notion that traditional law books and materials seldom suffice in determining the outcome of the case. While books and materials provide solid understanding of legal principles, reasoning, and logic, there is a dire need of having greater understanding of how the court interprets and gives its verdict. In most cases, students are taught that the outcome of a case can either be rules in favor of the plaintiff or the defendant. As a result, comparing precedents and various historical cases and patters, students fall victim to various forms of biases.

The Legal Realism entails that typical style of judicial decisions are not quite accurate depiction of the actual process of adjudication by basing itself on the major premise of law itself, followed by facts as its minor premise, and its conclusion follows the logical certainty. This is also known as mechanical jurisprudence.

No matter how the case is decided in the court of law, legal reasons, as implicitly taught within the American legal education, solely by themselves cannot form the basis of why a Judge decided a case as he or she did! On the contrary, the rest of the world, for the most part, follows the norm of:

How often an existing law runs out

How to fulfill existing gaps within legal reasoning and logic

Some Judges deciding on matters of fact follow a certain pattern such as enforcement of norms of prevalent culture and reaching the best possible decision under the prevalent socioeconomic condition. The main role of Judges should to act as a delegated decision maker and to dig deeper into various Cases, Statutes, Principles, and Jurisprudence.

Unlike classic legal thought, the legal education, largely shaped by the legal Realists in understanding the nature of adjudicating matters, has a distinct way of looking at the law. Judges take on these approaches while deciding cases, and reach to conclusions that may turn out to be good for some people, but bad for others.

With over 20 years of combined experience in the fields Law, Management, and IT, Syed has impeccable reviewing and strong editing skills with a long track record of writing technical, legal, and management articles that make readers stop and think. Being an entrepreneur, professor, and attorney, he providesconsultancy, management consulting, and project management in e-Discovery issues in complex civil litigation. He is the CEO of ClayDesk, an e-Discovery and cloud computing consultancy firm, and can be reached atceo@claydesk.com

Within the realm of eDiscovery, the Federal Rules of Civil Procedure (FRCP) become important to understand and follow. Numerous court judgments have been seen in recent times, where Judges have levied heavy fines and penalties upon parties who did not abide by these rules.

Several Rules have been amended as part of the changes effective today, with the changes ranging from promotion of cooperation (Rule 1) and proportionality (Rule 26(b)(1)) to failure to preserve electronically stored information (Rule 37(e)) . Here is a list of key Rules changed:

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

Noteworthy changes are in Rule 26:

Rule 26. Duty to Disclose; General Provisions Governing Discovery

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Information within this scope of discovery need not be admissible in evidence to be discoverable.

(2) Limitations on Frequency and Extent.

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

(c) Protective Orders. (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending —

or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(d) Timing and Sequence of Discovery.

(2) Early Rule 34 Requests.

(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

(3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and

witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.

(f) Conference of the Parties; Planning for Discovery.

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

SharePoint 2013 allows you to use eDiscovery and compliance features to manage and recover evidence used in civil litigations, as well as manage the records for your enterprise. Being such a powerful web based platform, you can create various sites (similar to web sites) within the SharePoint environment.

Before deploying SharePoint Server eDiscovery features, an important consideration, however, is to plan the search service application infrastructure for your organization. E-Discovery uses search service applications (SSAs) to crawl SharePoint farms. You can configure SSAs in many ways, but the most common way is to have a central search services farm that crawls multiple SharePoint farms. You can use this one search service to crawl all SharePoint content, or you can use it to crawl specific regions, for example, all SharePoint content in Europe.

The way it works is simple: To crawl a SharePoint farm, search first uses a service application proxy to connect to it. The eDiscovery Center uses the proxy connection to send preservations to SharePoint sites in other SharePoint farms.

Key features and APIs in eDiscovery include:

Case Manager, which enables records managers to create and manage enterprise-wide discovery projects, place potentially large amounts and various types of content on hold, and preserve a snapshot of content.

Enterprise-wide access, which includes the ability to put content on hold and to search for content from a central location. It also includes the ability to conduct searches, access SharePoint content, and place content on hold in any configured SharePoint location.

In-Place Holds, which enables an attorney to preserve a snapshot of content while ensuring that users can continue to make changes without disturbing the state of the content snapshot.

Analytics, which enable attorneys, administrators, and records managers to collect and analyze data about eDiscovery activity.

Importantly, the opinion reiterates that “courts leave it to the parties to decide how best to respond to discovery requests” and that courts are “not normally in the business of dictating to parties the process that they should use”.

Importantly, Judge Peck instructed that requesting parties can utilize other means to help ensure TAR training, even without production of seed sets. For instance, the honorable Judge suggested statistical estimation of recall towards the end of the review to determine potential gaps in the production of documents.

According to the Grossman-Cormack glossary of technology-assisted review with foreword by John M. Facciola, U.S. Magistrate Judge, seed set is “The initial Training Set provided to the learning Algorithm in an Active Learning process. The Documents in the Seed Set may be selected based on Random Sampling or Judgmental Sampling. Some commentators use the term more restrictively to refer only to Documents chosen using Judgmental Sampling. Other commentators use the term generally to mean any Training Set, including the final Training Set in Iterative Training, or the only Training Set in non-Iterative Training”. The important thing to know about seed sets is that they are how the computer learns. It is critical that a seed set is representative and reflects expert determinations.

As an attorney, I love a good argument corroborated as well as substantiated by solid precedents. Use of TAR in e-Discovery invariably is becoming a matter of “convenience” between both parties in trying to resolve issues. Well, we have arbitration laws for that matter!

A company’s existence is directly linked to its profit-making capabilities. This includes employing the most gifted workforce, running optimized operations, having excellent quality controls in place, just to name a few. There is an invisible force, however, constantly acting behind this entire process – the force of ‘laws of economics’ – principles of demand and supply.

The word ‘globalization’ is not a new buzz word anymore. However, its relation to economics is where the dilemma of outsourcing and offshoring lies. Gone are the days when corporations had loyal employees working for them, the technological advancement has disrupted not only how we work but how we think – Yes! We think Google, Facebook, LinkedIn, Twitter, and for the most part have become dependent upon technology.

So, what impact does technology have on driving profits for a company? Look around you – things have changed, human behavior has changed, our thinking process has changed – we have become victims to this unstoppable monster. As the Greek philosopher, Heraclitus, rightly said “There is nothing permanent except change”. As a result, companies who adapt to the changing environment remain at the forefront, and those who resist potentially may bear the grunt. In any case, the objective remains to make profits for shareholders.

We all are aware of the exponential growth of technological innovations and big data. What should companies do to maximize their profits in this dynamic environment? Outsourcing seems to be the logical solution. The single biggest advantage is reduction in existing costs. Consider a simple scenario related to e-Discovery industry:

“Company A is looking to hire Document Review Attorney for its e-Discovery project. What could possibly be the lowest per hour rate for a first pass review? How does 20 dollars per hour sounds! In today’s economy, believe it or not, you will find qualified, experienced, and certified individuals who would be willing to work. In the US, this rate is certainly peanuts for an attorney, but in India, Pakistan, Philippines, and Bangladesh, for example, 20 dollars per hour would fetch a luxury lifestyle”

With the advent of cloud computing, developing countries now have access to all the latest technologies, learning tools, methodologies, norms, usages etc. Workforce has truly become global and cloud computing is driving costs further down. As buyers influx the marketplace searching for low priced efficient technologies, sellers lower their costs to remain competitive. Consequently, companies may not afford or attract high paid workers. To bridge the gap, various outsourcing models fit the puzzle, providing same services at a drastically reduced price. Companies now have access to equally qualified workforce available in the cloud. To top it off, Ivy League universities now offer Bachelors and Masters level degrees online. So, for example, I could obtain an MBA degree from an Ivy League business school, while residing anywhere in the world, and provide expertise on a project via the cloud.

Having said that, profitability, principles of demand and supply, and cloud computing technologies are factors exerting pressures on US companies to find alternative ways to increase profitability. Microsoft and Amazon provide secure state-of-the-art data storage centers, and with SaaS, PaaS, and IaaS technologies, allowing for data security. A good example is of WordPress – majority of their employees are virtual. Similarly, Microsoft with its launch of Office 365 and allied products is evidently cloud based, and a qualified professional could administer, manage, and support Office 365 from anywhere in the world!

E-Discovery best practices begin with making data management as part of daily routine and business operations. Attorneys cannot achieve this objective without the help of IT department, and IT personnel cannot properly maintain data without guidance from attorneys about what should be kept or destroyed. Federal Rules of Civil Procedure related to e-Discovery and keeping up with changing law in the area is a good start, however, knowing and understanding how to put these lessons to practically work in practice is the key to implementing and conducting e-Discovery successfully. Planning ahead plays a pivotal role as it sets the standard for effective relationships between internal and external legal and technical resources. Below are few tips for implementing effective best practices for both inside and outside counsel.

Be proactive and have a formal document retention policy in place with rules for saving and destroying electronic documents.

Increase company-wide awareness of litigation readiness, and train employees to organize documents in an organized manner. Better yet, implement an effective document management solution such as M-Files – which includes e-compliance module.

Effectively cater to big data and effectively implement strategy for later archival, identification, and production in a timely fashion.

Train IT personnel to act as a deposition witness as per rule 30(b)(6).

Preserve potential evidence when necessary while effectively train and involve key legal and IT personnel as soon as litigation is imminent.

When a document request is received, be a partner in the data retrieval process – not just a messenger.

While harmony, effective communication, and smooth functioning between attorneys and IT personnel can prove to be beneficial for the organization, keeping current with latest technology and how it can streamline the e-Discovery process is equally important. After all, the purpose of technology is to act as a tool to handle complex e-Discovery in a speedy and cost efficient manner.

Secondly, e-Discovery costs can easily escalate to millions of dollars. For instance, on average a Gigabyte (GB) contains 15,000 documents. An average collection of 50 GB entails 750,000 documents which need to be sifted through for relevant details pertaining to specifics of case for defensibility purposes. To give you an idea in terms of costs, reviewing those documents could cost as high as $2 per document or 1.5 million dollars! If 60% were culled down using technology assisted review (TAR), costs would still be as high as $600,000 dollars! E-Discovery budget calculators can be found here.

Here’s the catch! These 750,000 documents are culled down in order to identify potentially relevant documents. The traditional e-Discovery approach is to process all data to TIFF or native for full linear review, whereas, newest and advanced method entails indexing, culling, legal first pass review, and process data for review. With the advent of ‘Big Data’ technology introduced (TAR) or predictive coding as a tool for handling e-Discovery in an efficient cost effective manner.

Statistics plays a pivotal role in TAR, and courts have endorsed usage of TAR in one way or other. However, there may be pitfalls as I explained in one of my earlier posts relating to the limitations of precision and recall in TAR.

Has our justice system become dependent on technology?

Technology is great, however, it must strictly be used as a tool in aid to the due-process of law. As an attorney, I would argue against our justice system’s inclination towards dependability on technology. There are other ways to reduce costs such as global talent acquisition, outsourcing, dual-shoring, offshoring etc., and numerous law firms and corporations have adopted such business models, documenting additional 60% reduction in e-Discovery costs. While reduction in e-Discovery costs are essential, the opportunity cost may undermine defensibility.

U.S. Federal Rules of Civil Procedure (FRCP) require organizations to look at the ability to respond in a legally defensible manner to discovery requests. Moreover, as organizations expand globally, they need to be ready at all times to provide information that could be requested as evidence in a legal proceeding. Internal or external auditors are in the best position to recommend policies and best practices that can prepare organizations to respond to a data discovery request. The auditors must:

Determine the effectiveness of the e-Discovery communication plan

Document the IT environment

Regularly review backup, retention, and data destruction policies

Review compliance with document destruction procedures, when a litigation hold is issued

Document the steps that will be taken to respond to e-discovery requests

During litigation, determine whether employees are preserving the integrity of relevant material

Review existing backup controls, reports, and inventories of media stored off site

Failing to prepare for an e-discovery request can result in sanctions. Organizations need to have a litigation readiness policy and plan in place to effectively deal with lawsuits. Auditors play a pivotal role in managing litigation risks and help organizations take a proactive approach to e-Discovery by recommending strategies that address key data preservation, storage, destruction, and recovery disquiets. Microsoft SharePoint 2013 and M-Files, for instance, offer e-Discovery and content management solutions to cater to these needs.

Corporate Social Responsibility (CSR) is a management concept in which companies integrate social and environmental concerns in their business operations and interactions with their stakeholders. The basic definition according to Wiki:

“Corporate social responsibility is a form of corporate self-regulation integrated into a business model. CSR policy functions as a built-in, self-regulating mechanism whereby a business monitors and ensures its active compliance with the spirit of the law, ethical standards, and international norms”

CSR is best incorporated with the ‘Triple Bottom Line’ (TBL) approach, which is essentially an accounting framework incorporating three dimensions of performance: financial, social, and environmental.

Triple Bottom Line

A triple bottom line measures the company’s economic value, ‘people account’ – which measures the company’s degree of social responsibility and the company’s ‘planet account’ – which measures the company’s environmental responsibility. While CSR indoctrination within the e-Discovery industry may be prevalent, only a handful of companies may actually have developed and adopted CSR.

Adopting to a mindset of a good corporate citizen, at ClayDesk, we have initiated the development of a CSR program with a goal of embedding CSR practices in our business. The foremost area of focus for CSR initiatives are directed towards promotion of legal education, e-Discovery laws, Pro-Bono legal work, sponsor a student, and steps towards a paperless (go-green) environment. These steps will bring about positive change and improve the quality of life of members of the society.

Some of the core CSR issues relate to: environmental management, eco-efficiency, responsible sourcing, stakeholder engagement, labor standards and working conditions, employee and community relations, social equity, gender balance, human rights, good governance, and anti-corruption measures. Denmark, for instance, has CSR Law in place which mandates companies to report their CSR initiatives. Apart from providing charity and sponsorship, CSR concept goes beyond by allowing companies the opportunity to become a socially and ethically responsible corporate citizen.

Generally speaking, courts have inherent authority to disqualify parties, representatives, and consultants from participating in litigation. Attorneys, expert witnesses, and litigation consultants may face disqualification motions in the event of a conflict of interest. With the rapid expansion of the eDiscovery industry, however, a new question has arisen: If an eDiscovery vendor has a potential conflict of interest, when should it be disqualified? What standard should apply?

To put the problem in perspective, imagine that you manage discovery at a law firm representing the defendant in a contentious wage and hour dispute, and you recently hired an eDiscovery vendor to assist you in scanning and coding your client’s documents, at a cost of $50,000. Two months later, you receive notice from your vendor that the plaintiff’s counsel has requested its services in connection with the same case. How would you react? Would you expect a court to disqualify the vendor if it accepted the engagement? This scenario occurred in Gordon v. Kaleida Health, resulting in the first judicial order squarely addressing vendor disqualification. The Kaleida Health court ultimately denied the defendant’s motion to disqualify, allowing the vendor to continue participating in the case.

Discussion of Gordon v. Kaleida Health

Kaleida Health arose out of a now commonplace dispute between a hospital and its hourly employees under the Fair Labor Standards Act (“FLSA”). The plaintiffs, a group of hourly employees, sued the defendant, Kaleida Health, a regional hospital system, claiming they were not paid for work time during meal breaks, shift preparation, and required training, in violation of FLSA.

Kaleida Health’s attorneys, Nixon Peabody, LLP (“Nixon”), hired D4 Discovery (“D4”), an eDiscovery vendor, to scan and code documents for use in the litigation. In connection with the work, Nixon and D4 executed a confidentiality agreement. D4 was to “objectively code” the documents using categories based on characteristics of the document, such as the author and the type of document. The coded documents would then be used by Nixon in preparing for upcoming depositions.

Two months later, plaintiffs’ counsel, Thomas & Solomon, LLP (“Thomas”), requested D4 to provide ESI consulting services to it in connection with the same case. D4 notified Nixon, who promptly objected based on the scanning and coding services D4 provided the defendant during the litigation. D4 then provided assurances that Kaleida Health’s documents would not be used in consulting the plaintiffs and that an entirely different group of employees would work with the plaintiffs’ counsel. Nixon, on behalf of Kaleida Health, persisted in its objection to D4 working for the plaintiffs and ultimately filed a motion to disqualify the vendor.

Magistrate Judge Foschio’s analysis began by outlining the standard governing the disqualification of experts and consultants. According to the court, the entity sought to be disqualified must be an expert or a consultant, defined as a “‘source of information and opinions in technical, scientific, medical or other fields of knowledge’” or “one who gives professional advice or services” in that field. After the moving party makes this initial showing, it must meet two further requirements. First, the party’s counsel must have had an “‘objectively reasonable’ belief that a confidential relationship existed with the expert or consultant.” Second, the moving party must also show “that . . . confidential information was ‘actually disclosed’ to the expert or consultant.”

Applying this standard, Judge Foschio ultimately found that because the scanning and objective coding services performed by D4 did not require specialized knowledge or skill and were of a “clerical nature,” D4 was not an “expert” or “consultant.” Further, the court determined that the defendant failed to prove that it provided confidential information to D4 because it did not show “any direct connection between the scanning and coding work . . . and Defendants’ production of [its] ESI.”

Rejecting Kaleida Health’s argument, the court declined to apply to D4 and other eDiscovery vendors the presumption of confidential communications, imputation of shared confidences, and vicarious disqualification applicable in the context of attorney disqualification when a party “switches sides.” The court— as an alternative basis to its finding that D4 did not act as an expert or consultant—held that disqualification was improper because no “prior confidential relationship” existed between Kaleida Health and D4.

Because Kaleida Health represents the first significant attempt at exploring the issues surrounding vendor disqualification, whether later courts should follow Kaleida Health’s lead in exclusively applying the disqualification rules for experts and consultants to vendors becomes the main issue in its wake. To come to a conclusion on this point, one must first explore the different schemes that courts may apply when considering disqualification.

This above excerpt is a part of article originally written by Michael A. Cottone, a candidate for Doctor of Jurisprudence, The University of Tennessee College of Law, May 2014.
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